LIBRARY OF CONGRESS,! 



Chap lAPA.^. i 




TRADE-M^^RKS. 



SPEECH 



OP 



HON. MOSES A. McCOID, 



OF IOWA 



HOUSE OF REPRESENTATIVES, 



Tuesday, Apeil 27, 1880. 




WASHINGTON. 

1880. 



SPEECH 

OF 

HON. MOSES A. McCOID 



The House haTing xinrler consideration the bill (H. K. Xo. 5CS8; to authorize the 
registration of trade-marks and protect the same — 

Mr. McCOID said : 

Mr. Speaker : In lb. Congress passed a law creating a Tiniform 
and harmonious system of legislation on the subject of trade-marks. 
That law was supposed to be based on the clause of the Constitution 
giving power to Congress to legislate for the protection of patent- 
able discoveries of individuals and copyrights of their production. 
That law existed until 1876, when it was amended by a penal clause 
making it much more efficient. Since that time it has been exe- 
cuted and trade-marks have been registered, certificates issued, and 
the business of the country in that regard has been conducted under 
the law of 1870. I believe nobody complained of the law or was dis- 
satisfied with it, either from the point of its interference with State 
legislation or any other ; and it gave universal satisfaction, except to 
those pirates and infringers whose unlawful trade was defeated by it. 

Last October the Supreme Court decided the laws all unconstitu- 
tional, and wheii we met in December it appeared to me as a plain 
and practical way of getting over the difficulty in which we found 
ourselves by that decision of the Supreme Court to amend the Con- 
stitution and get the power we thought we had in 1870 and 1876, and 
up to the decision of that court, and, under that power which we 
would get by an amendment to the Constitution, legislate as we had 
done before. 

The matter had been discussed over the country by the lawyers and 
in the papers a great deal, and when we met, December 2, the reso- 
lution to amend the Constitution was introduced, and, as the gentle- 
man from Georgia [Mr. Hammoxd] says, was referred to the Com- 
mittee on Manufactures, the proper committee under the rules of the 
House. It was considered by that committee and unanimously re- 
ported, favorably recommending the submission of the amendment to 
the Constitution, and urging it with such reasons in brief as they 
had at the time. That committee having jurisdiction of the subject 
in the House, and having reported favorably as to the propriety of 
the amendment, this House has the unanimous report of the commit- 
tee to whom they have given jurisdiction on that subject; but when 
the resolution came up in the House for passage, the bill introduced 
by the gentleman from North Carolina, [Mr. Armfield,] re-enacting 
the old law under another clause of the Constitution, was urged as all 



4: 

that was required. The question wasraised in that discussion whether 
or not we had, by virtue of the power to regulate commeree in the 
Constitution, power now, without an amendment, to pass a similar law 
to that of 1870 and 1876. 

The constitutional question having been raised in the House, it was 
suggested that the matter be referred to the Committee on the Judi- 
ciary, and to that I consented ; and it went to the Committee on the 
Judiciary on the subject, as I understood it and, as I think, the House 
understood it, of the constitutionality of the Armfield bill ; that is, 
whether or not Congress can now legislate on trade-marks without an 
amendment under the commerce clause of the Constitution. 

The Committee on the Judiciary have finally reported, and in their 
report they say that Congress has not the power, under any general 
clause of the Constitution, to legislate on the subject, and I under- 
stand the gentleman from Georgia [Mr. Hammond] to say that the 
Committee on the Judiciary are unanimous in the opinion that Con- 
gress has not the power, under the commerce clause, to pass this kind 
of legislation. 

That committee has recommended the bill which is reported and 
asked for its passage. I will, therefore, first discuss that bill. 

I think, Mr. Speaker, this bill is not one this House wants to pass, 
for several reasons. It is entitled ''A bill to authorize the registra- 
tion of trade-marks and to protect the same." The first clause says, 
" Trade-marks used in commerce with foreign nations and with the 
Indian tribes." The first objection to the bill is this : The commit- 
tee which reports it says we have no power to legislate under the 
commerce clause, and yet the bill proceeds at once to say '•' used in 
commerce." That is in the first section ; and in the third section they 
use the same language, with this additional clause, " Within the pro- 
visions of a treaty, convention, or declaration with a foreign power." 
The idea seems to be in the committee to place the bill itself under 
the coramerce clause, while, in their report, they expressly say that 
Congress has no such power. I only notice that, and leave it, to show 
the doubt of the Judiciary Committee where this power exists if at 
all. 

I take it on their own ground. I understand the gentleman from 
Georgia and the Judiciary Committee to say this, that we have no 
power to legislate on trade-marks, but that under the treaty power 
and the provision of the Constitution which says we shall make all 
needful legislation for the execution of the power given to the Presi- 
dent to make treaties, we may pass this bill. Now let us see. The 
chain of title of constitutional power is this, as I understand it, that 
the President can make a treaty according to a certain clause with 
regard to trade-marks, and it is necessary for Congress to legislate to 
execute the things to which the President has agreed to. I believe 
that is the theory of the gentleman from Georgia. 

In order, therefore, that this Congress should be enabled to pass a 
bill on this subject they must first find that the President and the 
Senate have made a treaty under the Constitution by which they 
agree to do certain things in reference to these trade-marks, and next 
that we have the power under the general provisions of the law to 
execute that treaty and legislate for the things which are agreed upon 
therein. Now, if that is the position of the Judiciary Committee I 
want to ask a few questions of some of its members. They say in 
this bill that they pass it for the execution of treaties with foreign 
nations and with the Indian tribes. That is the claim set forth by 
the gentlemen in advocacy of this bill. 



Xow, Mr. Speaker, I desire to ask the gentleman from Georgia, or 
any otlier gentleman on the Judiciary Committee, what treaty pro- 
vision has been made \^\th the Indians in which it is necessary for 
Congress to pass such a bill as this at all ? Has the President of the 
United States made a treaty with the Indian tribes agreeing to pro- 
tect their trade- marks, or has he made a treaty with the Indians 
agreeing that they shall protect our trade-marks ? Unless that treaty 
has been made we cannot pass the bill under the very conditions 
specified in the report from the Judiciary Committee itself, for they 
say that we must first have a treaty and then Congress may pass laws 
to execute the same. Now, I claim that there being no treaty with 
the Indians in reference to such protection of trade-marks, we have 
not the power to pass such a bill ; and I ask the gentleman from 
Georgia if he cannot legislate as between the States how can he legis- 
late as to trade-marks with the Indians ? I would like any gentle- 
man on that committee to state any reason or how we can legislate 
if there is no treaty with the Indians in this respect, and if the In- 
dian has no trade-mark. As I understand it the trade-mark of the 
Indian is ordinarily a lifted scalp, and generally it is impressed on 
the head of the white man ; that is at least one in which they have 
the right of priority of use. 

Under that reasoning of the Judiciary Committee to which I have 
alluded the power to legislate as to the Indians falls to the ground, 
and may be disposed of without further comment. They therefore 
admit, so far as this bill is concerned and with reference to the In- 
dians — and this report shows it — that that portion of the bill is un- 
constitutional, and of course we cannot pass it if there is no treaty 
whatever regarding it. 

Now, with reference to treaties with foreign nations, Mr. Speaker, 
I do not understand that we have any treaty with foreign nations 
that would justify or make it necessary to pass such a bill as this. 
In the first place, our treaties with reference to trade-niarks never 
contemplated such a state of affairs as this bill would create. The 
only treaties with foreign countries in which protection was promised 
prior to 1870 were the treaties with Russia and with Belgium. 

In those treaties we agreed that counterfeiting the trade-marks 
should be " strictly prohibited." The counterfeiting of trade-marks 
was prohibited at that time by the common-law provision, and being 
against the principles of the common law which recognized the right 
of property in trade-marks the violation of that right would come 
within the provision of the treaties, and the parties injured would 
have had remedy in damages. They would have had that remedy 
under the common law. These two words of treaty obligation are 
not sufficient to justify an argument for this bill. It is doubtful 
whether any more was intended by the contracting parties than the 
guaranty of protection at common law. 

These two treaties are the only ones with reference to trade-marks 
on which the right to legislate could be claimed that had been made 
before 1870. In 1870 we did pass a general trade-mark law, and the 
President and the Senate when they made treaties understood that 
we had the power to legislate upon trade-marks as a government, and 
when we agreed to protect foreign trade-marks it was upon the sup- 
position that we had the power to pass a general law. If we did not 
have at that time constitutional power to do that, that part of the 
treaty was simply void because we had not the power to make a treaty 
if we had not the power to legislate for its execution, and what this 
Government did after that agreeiug to protect trade-marks was done 
under a misapprehension and we are not bound by it. 



Foreign governments are presumed to know that this Government 
is one of limited powers, having only those powers which are con- 
ferred on it in the Constitution, and to know and recognize the ex- 
tent of those powers as well as we, so that in justice and equity we 
would not bo bound to pass any law for the protection of foreign 
trade-marks only so far as power existed at the time the treaties were 
made to enact laws for their execution. But if that is true, then we 
are not morally or in justice bound to any foreign government to pass 
such legislation, which gives the preference to foreign citizens over our 
own. But if gentlemen upon the Judiciary Committee base this legis- 
lation, as they say they do and are unanimous in that, upon treaties 
with foreign nations, they must first have a treaty and then legislate to 
execute it. Now what is the fact ? We have no w in existence treaties 
with foreign nations upon this subject, namely, with the Argentine 
Confederation, with Austria, with Belgium, with Brazil, France, the 
German Empire, Great Britain, and Eussia. With all other foreign 
nations we have no treaty, and yet gentlemen ask us to pass a general 
law which will cover all nations who may through their citizens ask 
protection of our laws. They do not limit it to those with whom we 
have treaty obligations on the subject. 

We have no such treaties with Bolivia, with Chili, with China, with 
Colombia, with Denmark, with Mexico, with Japan, w^ith Spain, with 
Switzerland, and other nations. And yet under the provisions of this 
law the citizens of all these nations with whom we ha'v^e no treaties 
whatever could come here and claim protection of their trade-marks 
in our courts. 

The Judiciary Committee say we could not pass a law or legislate 
on the subject as regards these nations with whom we have no trea- 
ties, because we have not the power, except where necessary and 
proper, to execute treaties, and such legislation, therefore, would be 
void. So that the law is unconstitutional so far as it legislates for 
foreign nations which have no treaties with us on the subject, as well 
as being void as to the Indians. 

Now, as to Congress getting power to legislate upon the subject at 
all through the treaty power, I put this question to the Judiciary Com- 
mittee : Admitting that Congress has no power to legislate upon the 
subject of trade-marks for our own citizens and internally, can Con- 
gress get more power by virtue of a treaty than it now has ? Can a 
treaty with a foreign government grant to Congress a power it has not 
without the treaty to legislate internally and alfecting our own citi- 
zens ? The Judiciary Committee have expressed no opinion on that 
subject and do not enter into a discussion of it ; but it seems to me 
the gravest question connected with this bill. Even admitting we 
had the treaties by which we had agreed to protect foreign trade- 
marks by national legislation, can we get the power to legislate on 
that subject, affecting the internal relations of our citizens in trade 
and commerce, the domestic relations, the police and State regula- 
tions, and rights and remedies, as the Judiciary Committee say ? Can 
we get that power by virtue of a treaty ? 

As regards that question I believe this to be a correct principle of 
law : A treaty does not confer upon Congress a power to legislate as 
between persons in the State, whether citizens or foreigners, in their 
internal commerce where that power does not exist, without such 
treaty, incidental to some general power. But a treaty agreeing to 
legislate in such cases by controlling the transactions between foreign 
citizens and the peoxile of the United States is void. I refer the com- 
mittee and the House to the following brief upon that subject : 5 



McLean, 348 ; 10 Pet., 362 ; 2 Crancli, 358 ; 4 Wheat., 316 ; Story on- 
the Constitution, third edition, sections 1508, 1519 ; also sections 1243" 
and 1244 : 

[Extracts from debates on the sixtli article of the Constitution, to be found in El- 
liott's Debates, volume 3.] 

They can by this make no treaty which is repugnant to the spirit of the Consti- 
tution or is inconsistent with the delegated powers. — Speech of Governor Mcholas, 
of Yirginia, page 508. 

Though the king can make treaties, yet he cannot make a treaty contrary to the 
constitution of his country.— /SpeecTi of Governor Mason, of Yirginia, page 514. 

The exercise of the power [to make treaties] must be consistent with the object 
of the delegation. 

* * ***** 

The object of treaties is the regulation of intercourse with foreign nations, and is 
external. I do not think itpossible to enumerate all the cases in which such external 



regulations would be necessary. * * * Would it not be considered as a danger- 
ous principle in the British government were the king to have the same power in 
internal regulations as he has in the external business of treaties ? Xet, as among 
oth^r reasons it is natural to suppose he will prefer the interest of his own to that 
of another country, it is thought proper to give him this external power of mak- 
ing treaties. This distinction is well worthy of the consideration of gentlemen. — 
Speech of Madison. ' 

Suppose we had no general law of the United States, would the 
President ever have made such treaties ? 

The act must he for the means requisite and fairly applicable to the 
attainment of the end of some other express power granted. (Story, 
section 1245.) 

If we had the power to legislate for the registration and protec- 
tion of trade-marks under any clause of the Constitution, then it 
would he within the power of the President to make a treaty for a 
reciprocity in international legislation. And it would be within the 
discretion of the Legislature to make such laws as should be neces- 
sary and proper to carry into execution his treaty. 

Especially do I refer gentlemen to the case in tenth Peters, case of 
New Orleans against the United States. The question was as to the 
United States having power to control the quays of New Orleans. 
Under the King of France before we received that territory the sov- 
ereign had that power to make all the regulations. Under the King 
of Spain it was the same. And when the territory was ceded to us by 
treaty they ceded to us the same sovereign power over that territory 
that they had. The question arose in this case whether or not under 
that treaty the United States Government got the power to control 
these quays. The decision is in tenth Peters. I read from page 736 
of that report. The Supreme Court say that the government of the 
quays would be a police power ; and then they say this : 

The Government of the United States as was well observed in the argument— 

This case was argued by Webster on the part of New Orleans — 

^s one of limited power. It can exercise authority over no subjects except those 
which have been delegated to it ; and — 

Notice this sentence — 

Congress cannot by legislation enlarge the Federal jruisdiction ; nor can it be en- 
larged under the treaty-making power. 

That is just the i)oint I make, that the power of Congress to legis- 
late upon subjects over which the general clauses of the Constitution 
do not give them power cannot be increased by a treaty. And the 
gentleman from Georgia [Mr. Hammond] has found no decision, and 
I presume the Judiciary Committee have been diligent and have 
searched the reports and have given us all the authority by which 
they sustain this power, yet they have found no decision but one ; 



8 

and I wish to call tlie attention of the House to that. The gentle- 
man from Georgia supports this legislation hy that reference alone. 
He says this : 

Congress has "power to make all laws necessary and proper for carrying into 
execution the foregoing powers and all other powers vested by the Constitution in 
the Government of the United States or in any department or oflQcer thereof." 
(Article 1, section 8, Constitution.) Congress, though powerless in this regard, 
under the commerce clause, may so legislate in aid of the treatj^-maMng power. 
This idea is fully illustrated and sustained by the Supreme Court in United States 
vs. Coombs, 12 Peters's Reports, 78. 

You observe the gentleman says that the idea that we get this 
power from the treaty-making power is fully illustrated by the Su- 
preme Court in this case : 

The question was, whether certain obstructions to commerce, not at sea nor 
within tide-marks, but on land, could be punished by Congress ? The court said — 

And here he quotes the decision of the court — 

"Any oflfense which thus interferes with or obstructs such commerce and naviga- 
tion, though done on land, may be punished by Congress under its general au- 
thority " — 

And the gentleman "italicizes these four words "under its general 
authority" — 

"ta make all laws necessary and proper to execute their delegated constitutional 
authority." 

And I would italicize those words. They may make all laws neces- 
sary and proper under the general authority to execute their delegated 
constitutional authority. Nothing else. They must have delegated 
constitutional authority first. Then under this general clause they 
may execute that appropriately to the end intended. 

But the gentleman from Georgia is mistaken when he says the Su- 
preme Court put that decision upon the treaty-making power, and 
the Committee on the Judiciary, if they place this legislation upon 
this decision in twelfth Peters, are mistaken as to where the power 
rests. I read from that decision, page 78 : 

But we are of the opinion that under the clause of the Constitution giving power 
to Congress to legulate commerce with foreign nations and among the several States, 
Congress possesses the power to punish offenses of the sort which are enumerated 
in the ninth section of the act of 1825, now under consideration. 

It was not the treaty-making power under which they said we had 
this authority, but it was the power to regulate commerce with for- 
eign nations. If the gentleman will read this decision carefully he will 
find that they said we had not the power under the judicial jurisdic- 
tional clause, that it was not a maritime offense ; but that we had the 
power under the clause to regulate commerce. They did not place it 
upon the treaty-making power at all. We do not derive from the 
treaty-making clause the power to punish for offenses outside of those 
committed on the high seas and in the tide-waters. I ask gentlemen 
of the Committee on the Judiciary to show me one sentence in that 
decision where the court placed this authority under the treaty-mak- 
ing power ; or making the case favorable to this principle announced 
in their report ; it is directly against them, for the court sought and 
cited a general clause of the Constitution under which Congress could 
claim the power and did not rely on the treaty. 

The expression of the Supreme Court in 10 Peters is not contro- 
verted, and I do not find a decision anywhere, and the Committee on 
the Judiciary have not found any, which states that Congress gains 
any such power under the treaty-making clause. That is the only de- 
cision which the gentlemen of that committee have cited, and they 
say it fully sustains the power of Congress under the treaty-making 
authority. And we see it, in fact, is against them. 



9 

I desire to call the attention of the House, and of tbe committee 
that made this report, to the following principle laid down in Kent, 
eleventh edition, page 266 : 

If the end be leo-itiraate and within the scope of the Cocstitution. all means 
Avhich art> proper and plainly adapted to this end, and vrhich are not prohibited, are 
lawful. 

This Is the extent, and the full extent I claim, to which Congress 
can go under that power. Bat the members of the Committee on the 
Judiciary themselves say that the end herein sought to be attained is 
not within the scope of the Constitution, the end being legislation on 
the subject of trade-marks. That committee has expressly said that 
the Constitution does not give any power to Congress to do that thing ; 
that no power is given to the General Government by the Constitution 
to regulate trade-marks ; that there is no express power in the execu- 
tion of which the regulation of trade-marks is expedient, useful, or 
conducive to the end to be attained in any general power. That con- 
trol of the subject is left to the States. 

They say that it is not contained under the commerce clause, the 
y)atent clause, or the copyright clause. They might have placed it 
finally under the constitutional sovereignty power. They might have 
said that under the sovereignty of the United States this power might 
rest in its dealing with other sovereigns ; but they put it nowhere in 
any constitutional power to be found within the scope of the Consti- 
tution. 

Now I ask those gentlemen, and especially the gentleman from 
Georgia, [Mr. Hammond,] whose brilliant peroration on the subject 
of State rights closed his argument, this question : Should the Presi- 
dent and Senate by treaty agree that none but Rhine wines should be 
sold in the United States, that, in the language of the treaty, " all 
others should be strictly prohibited," does the gentJeman believe 
that Congress would have the power to legislate to execute that treaty f 
And if he does not believe that, will he point out to me wherein such 
a power to legislate would differ from that claimed in the present case, 
giving preferred rights and remedies to foreigners as between them 
and American citizens ? 

If the President and Senate should by treaty agree that the sale of 
all but foreign steel rails should be "strictly prohibited" in the 
United States, would the gentleman say that it is our duty to legis- 
late to execute that treaty, and that Congress gained the power to do 
so because the treaty required it ? If he can say so in the present 
case, he can as well say so in that; because he says that the treaty 
alone is the grant of power to Congress, that otherwise Congress would 
not have the power. 

Suppose that the President and Senate should make a treaty pro- 
viding that the sale of all but Havana cigars should be " strictly pro- 
hibited " in the Unitftd States. Would that confer upon Congress the 
power to legislate to execute that treaty, and to strictly prohibic the 
sale of all other cigars ? If it would not, would power be conferred 
upon Congress by a treaty to protect foreign trade-marks and not our 
own ? It seems to me that the Judiciary Committee, although they 
had this subject under consideration a -long time, with instructions 
to report it as soon as possible, have certainly not reached the bottom 
of the subject in reporting and recommending a bill of this character. 

Passing from the constitutional question, let me examine for a mo- 
ment the practical question. If treaties are made requiring the Gov- 
ernment to legislate in a certain way in harmony with foreign gov- 
ernments, it would still remain a question with the legislative branch 



10 

in their discretion whether they ought so to legislate. It would re- 
main with them to decide whether they would do this thing which 
the President has agreed shall be done. We are the legislative branch , 
on which alone this power is conferred by the Constitution. It is 
within our discretion to determine whether we will pass the legisla- 
tion which the President has stipulated shall be passed in any treaty. 

Now, supposing you had the power, I ask whether in the exercise 
of that discretion you would favor the passage of this kind of a bill ? 
Let us see what it is. Under this bill foreigners are to be protected 
by national legislation against infringement of their trade-marks. 
Under this bill they may go to United States courts for their reme- 
dies, both civil and criminal. They may there ask for damages ; 
they may there ask for injunctions; they may there ask for search- 
warrants to hunt out and destroy all implements supposed to be in 
the hands of any person for the purpose of infringing or pirating upon 
their trade-marks. 

Under this legislation, if it should pass, you might find in our United 
States courts two persons standing at the bar for juntice. One hap- 
pens to be a Frenchman, a German, a Russian, or a Turk ; the other 
happens to be an American citizen. The one invokes the ]30wer of 
that court to give him judgment for his damages, and he gets it ; 
the other is refused. One asks for a search-warrant to hunt out and 
destroy suspected implements by which his trade-mark may be coun- 
terfeited. He gets it, while a similar application made by the other 
is refused^. One goes into the United States courts under the crimi- 
nal laws and prosecutes to punishment by the severest penalties of 
fine and imprisonment any man attempting to counterfeit his trade- 
mark ; the other stands alone in that court without remedy. One, 
as against a citizen of the States, may sue in the United States courts ; 
the American cannot. One produces a United States certificate of reg- 
istration, which is the prima facie evidence, from Maine to Alaska, of 
his ownership, upon which he readily wins his case ; the other cannot, 
but is left to grope in the long past to prove his prior use of his mark 
with ail the difficulties of finding the evidence which time has swept 
away. 

When that lone man rises up and asks, " Why am I not here with 
the same rights that these other men have ? " you will see the French- 
man under his flag, the German under his flag, the Briton under his 
flag, the Russian or the Turk under his, pointing at him and saying, 
"You are an American citizen ; by that misfortune yon have under 
the legislation of your own Congress no rights here ; we are preferred 
to you in every respect." 

Mr. Speaker, for these several reasons I say this bill ought not to 
pass. I hope it will not receive the support of this House nor even 
the support of the Judiciary Committee. First, it is unconstitutiona], 
because it legislates for trade-marks in commerce with the Indians, 
with whom there is no treaty providing for such protection. Next, 
it undertakes to give the same protection to foreign nations with 
whom we have no treaties on the subject ; and by the reasoning of the 
Judiciary Committee itself this legislation falls to the ground with 
reference to such nations. Next, as to foreign nations wirh whom wo 
have treaties on this subject, those treaties were made under a mis- 
apprehension of our power as a nation, under the supposition that 
we had the authority to pass such laws as were passed in 1870 and 
1876, legislation which we supposed until last October had full force. 
The treaty-making power in making these treaties acted under a mis- 
apprehension ; and the immutable principles of justice require that 



11 

no man or gOTernnient or society shall be prejudiced by wliathas been 
done under a misapprehension of that kind. 

But supposing these treaties to be in full force, to have been made 
with full knowledge of their effect, that would not confer upon Con- 
gress any additional power not within the scope of the Constitution. 
It would be disastrous for us to adopt the principle that any treaty 
made by the Executive can increase the powers of Congress. 

This bill does not refer to external matters. Treaties relate to ex- 
ternal matters between sovereigns. This bill goes into internal mat- 
ters between citizen and citizen. Why, sir, you will find in this bill 
a provision that between citizens of the States this bill applies. 
When they are citizens of the same State, and the trade-mark in con- 
troversy is intended to be used for foreign commerce, this bill gives 
them all these rights as against every other citizen of the State. It 
undertakes to go into the State and as between citizens of that State 
give them rights as above all others, if their trade-mark is intended 
to be used in foreign commerce or with the Indian tribes. All through, 
the bill affects citizens of the States. If two men are engaged in ordi- 
nary traffic — in the grocery or any other business — in a State, this 
bill steps in and affects the one without affecting the other, because 
of the trade-mark which hapx3ens to be on some of the goods. 

Again, I object to the bill and hope it will not pass because if it 
were constitutional, if we had the power to pass it, if we could get 
this power from a treaty, it would not be a just and righteous law, 
but would be an anomaly and an outrage upon the American statute- 
book. The result would be thafc any American owning a frade-mark 
would be driven to assign that trade-mark- to a foreigner and then 
come back under a foreign flag to get protection. If I had a trade- 
mark and wanted to have it protected by the United States courts 
under the provisions of this bill in the interstate commerce of the 
country, I would immediately assign it to some German, Frenchman, 
or some other foreigner, and then come back under the foreign flag 
and ask for my rights under this bill because I could not get them, 
under my own flag. 

This is not the way foreign nations do. We have treaties with 
Germany and treaties with France, and they do not treat their citi- 
zens in this way. In violation of their treaties to-day on the statute- 
books, France has this provision : The nineteenth article provides 
that all foreign products bearing the mark or name of a manufact- 
urer resident in France, or the name or the place of a French factory, 
shall be excluded from France or seized. That is the way they do 
there. If an American comes with goods with the stamp of their 
factory on them they are excluded and cannot come into the ports of 
that country, and are seized and confiscated. Yet you say, in opposi- 
tion to that, they may come here and ours shall not compete with 
them in the commerce of this country under your legislation. 

Take Germany. How does she treat her citizens under the treaty 
which says our citizens shall have the same rights as her own sub- 
jects ? Section 13 of her trade-mark law is as follows : 

Every native prodncer or trader wlio has received protection or authorization 
for his trade-mark may, in the event of another unlawfully making use of the same 
or the name of his firm, in virtue of this law enter an action against any person so 
doing in order to obtain a legal decision that he is not entitled'to make use of such 
trade-mark. The producer or trader may likewise prosecute any person who un- 
lawfully exposes or keeps for sale any goods unlawfully mai-ked with the complain- 
ant's trade-mark ; that the person so doing may be judicially declared unauthorized 
to expose or keep for sale any goods so marked. 

Mr. HAMMOND, of Georgia. Will the gentleman allow me to ask 
him a question ? 



12 

Mr. McCOID. Yes, sir. 

Mr. HAMMOND, ot Georgia. When the treaty conies in and says 
tLe foreigner ehali have the same rights as the native, does nofc that 
make it practically read native or foreigner? 

Mr. McCOID. If the gentleman will examine he will find this is a 
law made after the treaty, and not before it. 

Mr. HAMMOND, of Georgia. The treaty is that each foreigner 
shall have in the country of the other the same rights that the citizen 
has at home. Therefore you legislate for the citizen but you treat for 
the foreigners. 

Mr. McCOID. Not at all. It is necessary for that nation under 
the treaty to legislate and execute it. They do not get rights which 
require legislation to create by a treaty ; they only get them by leg- 
islation under the treaty. Does the gentleman say as a legal princi- 
ple that a treaty is law, where it requires legislation, without that 
legislation ? 

Mr. OSMER. They get recognition by the treaty. 

Mr. McCOID. Yes ; they get recognition by the treaty and the Gov- 
ernment then enacts the law to give them the remedy. But a treaty 
agreeing to certain rights and remedies does not become a law with- 
out the legislation to carry it out. Now, under their legislation after 
the treaty, they have in Germany enacted what I have read in sec- 
tion 13. 

I say I object to this bill because it gives the foreigner preference 
over our own people, and, for one, I do not want to place our citizens 
in any such relation. I object to it for its want of reciprocity, for its 
want of mutuality; I object to it on the ground that we do not have 
the same rights and cannot give the same rights to American citizens 
under our laws which we give to them. I know very well we would 
like to do so. I know gentlemen say we would go to the extent of 
our power, but we do not do it because we have not the power. I say 
we had better wait until by grant of power from the States we can 
make a law which will be uniform, and harmonious, and equitable, 
and jubt both to our own citizens and to foreigners. 

CAN TEAUE-MAKKS BE PKOTECTED UNDER PATENT LAWS? 

Now, Mr. Speaker, there is one other point which is spoken of in the 
report of the Committee on the Judiciary, and which was referred to 
by the gentleman from Georgia [Mr. Hammond] in his remarks. It 
is there said under the patent laws patented goods may be protected. 
In that I think the committee is entirely mistaken. The Judiciary 
Committee in saying that trade-marks may be protected under the 
patent laws must have forgotten that there is no analogy between 
them whatever. Although the patent laws require the name and date 
of the patent to be put on goods, there is no trade-mark in it. It has 
no reference to trade-marks. 

On this subject I took the liberty of submitting certain interroga- 
tories to the Commissioner of Patents, and I ask the Clerk to read 
those interrogatories and the reply which I received to them from the 
Commissioner. 

The Clerk read as follows : 

WAsmNGTON, D. C, Api-il 20, 1880. 

Deak Sir : In the determination of the necessity and practicability of national 
legislation upon the snbject of the protection of trade-marks as between citizens 
of States, and a constitutional amendment under which such legislation may be 
had, it becomes important to know whether : 

First. Under the power of Congress of securing for limited times * * * to 
inventors the exclusive right to their respective * * * discoveries, (article 1, 



13 

section 8,) and to gire sncli protection, and under wliicli Congress has forbidden 
any one to " mark upon anything made, used, or sold hy him for which he has not 
obtained a patent the name or imitation of the name " of the patentee, or to put 
" patent," "patentee," or " letters-patent," or any word of like import with intent 
to imitate or counterfeit the mark or device of the patentee without his consent 
and prescribed as penalty for a Tiolation— (Eevised Statutes, section 4900)— trade- 
marks are or may by further legislation be sufficiently protected on patented 
goods ? 

Second. Whether State legislation is sufficient to protect interstate trade-marks ? 

Third. The propriety of protecting foreign ti-ade-marks by national legislation , 
and leaving domestic trade-marks without any siTch direct legislation ? 

Fourth. Why, if under patent laws trade-marks on patented goods may be suf- 
ficiently protected for our citizens, they may not also for foreign citizens ? 

Fifth. What conflicts or confusion would result from State legislation and na- 
tional legislation as to trade-marks under treaties ? 

I respectfully request you to give youi views on these qxiestions, and such facts 
as in your opinion sustain them. And also the results of national protection under 
late laws now declared unconstitutional. 

Yery respectfully, your obedient servant, 

M. A. McCOID. 
To the CojnrissioxER of Patents. 

Depart:.:ext of the I>;terior, 
UNITED States Patent Office, 

Washington, D. C, April 21, 1880. 

Sir : In reply to your informal inquiries, relating to trade-mark legislation, I 
have the honor to state — 

First. That there is no such relation between trade-marks and patents and pat- 
entable inventions by which the provisions of the existing laws relating to patents 
can be applied to the protection of trade-marks. 

The United States Supreme Court in the Steffins' case having expressly de- 
clared that the clause of the Constitution relating to protection to be given authors 
and inventors to their respective writings and discoveries cannot be construed to 
extend to trade-marks, it would necessarily follow that any amendment of the pat- 
ent laws (which derive their validity from such clause of the CoDstitution) in- 
tended to affect the matter of trademarks would to that extent be invalid. 

Second. Section 4900 Eevised Statutes, to which you have called my attention, 
is mandatory in requiring patentees to mark their articles as patented, together 
with the day and year the patent was granted, as notice to the public, and as a 
prerequisite in maintaining any suit for infringement, except on proof that the 
defendant was otherwise duly notified. But the announcement which that section 
requires to be made on patented articles can in no way be construed as a trade- 
mark. The United States Supreme Court, as well as other courts, both in this 
country and England, have repeatedly held that the mere announcement of a fact 
upon ail article of manufacture, or the use merely of a generic name, consisting of 
the name of the manufacturer, or words to denote quality, or the time and place of 
manufacture, are not proper subjects for a trade-mark under the common law. 
And it has also been held that after the expiration of a patent the public gener- 
ally, in manufacturing the article, are entitled to use the name of the patentee to 
designate or identify such manufacture with the one previously patented. 

Third. The number of trade-marks heretofore registered in this office, whicli 
amoun tstobetween eight andnine thousand, is a very small part of the valuable trade- 
marks constantly in use throughout the country. But of late years the number of 
applications for the registration of marks at this office has very greatly increased; 
and from all that we can gather the principal reason seems to be that the legisla- 
tion of the various States is so conflicting that no adequate protection could be af- 
forded under the State laws, especially as to agents of foreign corporations, citi- 
zens of other States as well as of foreign countries using the same mark. 

There are a vast number of unpatented and unpatentable articles of manufact- 
ure of great value, protection to the manufacture and the sale of which by the orig- 
inal manufacturers can only be given by trade-marks, and the sale of which ar- 
ticles is in no wise restricted by State or national lines. The protection aflforded 
to such manufactures when imported from foreign countries by treaty regulations , 
such as now exist relating to trade-marks, is ex'tremely valuable, and their value 
is so apparent to every citizen of this country that it is very natural for them to 
desire the same protection that is thus afibrded foreigners. Whatever protection 
Is afibrded foreigners under our patent laws is also already extended to citizens, 
and no further amendment to those laws is needed for that purpose. 

Fourth. One great atlvantage of the legislation by Congress on the subject of 
trade-marks has been the gradual adoption of a anifona sy^stemof adjudication by 
the United States courts iii regard to the rights of the owners of trade-marks and 



14 

the confidence whicli has been estahlished. witli the public in all such matters that 
have come within the operation of Federal legislation and the adjudication of the 
Federal courts. Especially has this confidence been promoted by the penal pro- 
tection afforded by recent legislation. 

Notwithstanding the recent decision of the Supreme Court in holding the trade- 
mark acts invalid this office is receiving continually applications to the nuniber of 
forty or fifty a month for registration ; and where it is shown that the applicants 
are aware of the said decision, which fact is required to be made evident in every 
application, registration is granted subject to the provisions of the law hitherto in 
force. 

I regret that the very short time given me to answer your inquiries has pre- 
vented a thorough consideration of the subject — a subject which is a much older 
one than that of patents, and covers a far wider field. Patented articles are the 
product of inventive genius alone, and their production is confined to compara- 
tively few, while trade-marks, in themselves also assignable personal property, 
are applicable to all articles of commerce, and may be adopted by any one who 
wishes to distinguish his goods from chose made by another. 
Very respectfully, your obedient servant, 

W. H. DOOLITTLE, 

Acting Commissioner. 

Hon. M. A. McCoiD, 

House of Representatives. 

Mr. McCOID. I have a brief on the suhjeot supporting this state- 
ment which I will print without reading. After the exx^iration of a 
patent it becomes public property, and in that respect would not be 
patentable as a trade-mark. The words imprinted upon patented 
articles of manufacture are common property after date of expiration 
of the patent. (The Locke Manufacturing Company vs. Levi C. Boy- 
ington, (October, 1875,) Official Gazette, Patent Office, volume 9, Jan- 
uary-June, page 455 ; Edleston vs. Vick, 23 English Law and Equity 
Eeports, Official Gazette, Patent Office, volume 14, page 270.) The 
office has hitherto refused to record such names as trade-marks, and 
the courts, both in England and this country, have declined to ex- 
tend protection to their use. In this case the vice-chancellor held 
that in the matter of "Tajdor's patent pins," the patent having ex- 
pired, everybody had a right to use that term. If that alone consti- 
tuted the whole of the label, it was public property. 

C. E. Richardson et al., (3 Official Gazette, 120 :) The Commissioner 
refused registration of the words ''A. Richardson's Union leather- 
splitting machine," on the ground that the words presented had be- 
come the generic name of the machines by which the public knew 
them. 

The Consolidated Fruit Mar Company, (14 Official Gazette, 169:) 
When by long usage the name of a person in designating a certain class 
of manufactures has become generic in its character, such a name is 
at common law not a lawful trade-mark. The Commissioner is pro- 
hibited by section 4939 from registering as a trade-mark the name of 
a person merely. While the ownersof a patent have the right by virtue 
of such patent to stamp goods manufactured thereunder with the 
name of the patentee, such right succeeds to the public with expira- 
tion of the patent, and the exclusive monopoly of such name cannot 
lawfully be vested in the present or former owners of the patent as 
a trade-mark. (Canal Company vs. Clark, 13 Wallace, 311.) 

Another principle of the old trade-mark law was that the name of 
a person cannot be used as a trade-mark or the generic name describ- 
ing an article cannot be made a trade-mark ; and in the bill gentle- 
men have reported here they have made provision that the name shall 
not be made a trade-mark, carrying out the decisions to wliich I have 
alluded in that respect, also the old law, so that under the patent 
laws no such protection could be given as the Judiciary Committee 
seem to indicate. These are all false hopes, forced and' unnatural. 

I lay down these t\Vo propositions: 



15 

First. It is a public necessity that we have throughout the Uuited 
States one universal, uniform, harmonious system of legislation upon 
the subject of trade-marks. 

Second. There is no power granted to Congress in the Constitution 
to enact such a system, nor has Congress the power in any xjractical 
way to legislate upon the subject. 

A trade-mark is a species of personal property of such intangible 
and invisible character as to require for convenience and control that 
it be evidenced to the rightful possessor by the grant of a certificate 
by Governinent, and although it belongs as a natural right at common 
law to the individual who originally adopts and uses it, yet that right 
should be merged into the statutory grant when made. In the mixed 
form of our Government it has long since been demonstrated by experi- 
ence that such subject can alone be controlled harmoniously by the 
Congress, and it was the purpose of the fathers of the Government, who 
in convention framed the Constitution, to include in the powers of 
Congress all such subjects. The evils which led to this practice, 
under the old confederation, are familiar to all, and I take up no 
time to enumerate them. These evils were but examples of all that 
would result to the country if this subject. of trade-marks is solved in 
any way except by giving the entire control of it to Congress. Con- 
fusion, conflict in State laws and State decisions and State practice, 
vexatious law suits, jealousies, and loss of value to all such pro]Derty 
and the interest of manufactures and trade would result. 

That this subject was not so specifically granted along with others 
of its analogues in the Constitution is because at that time it was 
unknown ; but few cases had been reported ; it was unmentioned in 
law-books of the day, and its importance was unfelt. It has grown 
up since, and to make a grant of that power now is but carrying out 
the spirit of the founders of the Government. The very nature of 
the property is such that we cannot cast lots upon it and divide it 
out to the jurisdiction of thirty-eight governments who are unable 
to form treaties with each other, and give the General Government 
what is left under interstate and foreign commerce. The commer- 
cial nations of the world have by reciprocal treaties expressed their 
opinion that reciprocity, uniformity, and harmony in the protection of 
trade-marks should exist. But there is no way of obtaining reciprocal 
action among individual States but by transferring the whole subject 
to Congress. Grants in the Constitution of power to Congress to legis- 
late upon a subject of common interest is in the nature of a treaty 
of the States, and as all the nations have united in this necessity, so 
should the States in this amendment, to the end of securing a harmo- 
nious system of enactments. The conflicting action and failures on 
the part of nations to recognize the rights of trade-mark owners 
fairly exhibit the natural result of State legislation. 

If protection is to be limited by State lines, trade-marks will be- 
come of little value. 

It is laid down in all authorities on this subject that such marks 
in their very nature are unlimited by time or territory ; that they 
have individuality — a singleness and unity which renders the subject 
indivisible. 

The practical effect of an attempted regulation of these commer- 
cial signatures, under the theory that they come within the clause of 
the Constitution on the subject of commerce, is to give to one portion 
of our citizens superior protection and leave a large portion, perhaps 
the largest, out of its pale. It would be very offensive — simply out- 
rageous — if such a law should prove to be valid and give to aliens the 



16 

monopoly of trade-mark protection, leaving our own countrymen to 
the cold remedies of common law. 

It is far better not to undertake any Quixotic attempts against the 
Constitution, any mere tentative, temporary statute. Our foreign 
or interstate interests may as well wait as the larger portion of trade 
and traffic between citizens of the same State. Up to 1870 all that 
we had was the common law, and we extended in our courts to treaty- 
protected aliens equal protection with our own people. We are, not 
through our fault, thrown back to that status. Aliens only suffer 
with ourselves the temporary inconvenience of the statutory inter- 
regnum. They cannot justly complain or retaliate. This is a gov- 
ernment of delegated constitutional powers ; and they must wait the 
constitutional process by which that instrument can be amended and 
statutes passed. If we in good faith enter upon the path best calcu- 
lated to secure that protection which they demand, it is all they can 
reasonably ask. 

It is not the part of wisdom to allow the swift pressure of their 
interests to push us to that partial action which the Supreme Court 
well says " it is quite probable * * * if the matter were now be- 
fore that body [Congress] it would be unwilling to do, namely,- make 
a trade-mark law which is only partial in its operation, and which 
would complicate the right which parties would hold in some in- 
stances under the act of Congress and in others under State laws." 
This is the discordant, partial, aud unsatisfactory law now urged as 
a substitute for the constitutional amendment. The Supreme Court 
refused to make it by judicial construction and we should refuse to 
make it by doubtful constitutional experiment. 

NATURE OF TRADE-MARKS. 

The origin of this species of property, the rights and remedies, sus- 
tain the proposition that it is and should be controlled by a compre- 
hensive national code. First, trade-marks exist as a natural proprie- 
tary right, and received recognition and j udicial protection prior to 
any statutory enactments. And they now, in the absence of any 
legislation on the part of the United States, or of any constitutional 
power to so legislate, still exist as the property of the person who has 
first adopted and used a mark on any certain article to distinguish it. 
Such person has the right of action for damages for the fraudulent 
use of his mark against any one who applies it to any similar article of 
other origin or make. He has this proprietary right for an unlimited 
time and bounded by no State or nation. He has also the equitable 
right to restrain the unlawful use of his mark. 

The right exists. The owners ought to be further protected. The 
common-law remedies have been felt to be inadequate for many rea- 



First. The issue of whether or not the plaintiff is in the rightful 
possession of the mark by prior adoption and use, must in each sep- 
arate case be established. As time wears away this becomes very 
difficult, if not impossible. There is no court in which this issue 
may be once presumptively adjudged for all, and a record of such 
judgment certified and the result remain, once for all, res adjudicata. 

Second. The remedies are not sufficient to restrain the greed of 
gain and the bravery of fraud. The gains are so out of proportion 
to the risk that, in the general stampede of pirates, a trade-mark de- 
preciates as fast as fiat money. The public are so deceived they put 
no faith in even the geuuiue ; and the manufacturer finds that which 
wholesome legislation would render of great value to himself and the 
purchasing public comparatively worthless — not worth the expense 
of the endless petty litigation necessary to preserve it. 



17 

Third. Beyoucl the little circle of his ovru domestic life, his State, 
and his friends he is left to the dim senvse of natural justice, which 
lends its cold hand to the alien suitor. He is Tvithout remedy. 

But I believe as yet no one has seriously announced himself as op- 
posed to additional statutory protection to trade-mark owners. But 
the discussion is between three classes of thinkers. 

First, those who believe the local legislation of the States all that 
is required, and that the subject of trade-marks should, with the ear- 
marks and brands of domestic animals, be governed by domestic stat- 
utes of each Srate. 

Second, those who believe that it is a subject that can be practi- 
cally divided, and partial control left with the Legislatures of States ; 
and the other portion, under the head of commerce -among the States, 
Congress has constitutional power to regulate. 

And third, those who are of the opinion that it is an indivisible 
subject, entirely national in its vast importance of which the mere 
commerce between citizens of different States would cover but little 
if any, and that no clause of the Constitution comprehends it ; but 
that it has grown np and become recognized as requiring protection, 
in the interests of manufactures and trade since the adoption of the 
Constitution, and that it is of sufficient importance to be made the 
subject of a grant of power to Congress, in order that the whole sub- 
ject maybe made the object of one uniform, harmonious, and efficient 
national statute. 

Before entering upon the discussion of these i)ropositious, let us 
inquire into the nature of the right or property to be protected. A 
trade-mark is the exclusive privilege of using a mark or symbol to 
distinguish articles of manufacture so that purchasers may identify 
them. To perfect a trade-mark as the property of a person requires 
the manufacturing of a certain article of salable property, the selec- 
tion of a certain mark or design to identify such property as genuine, 
the impressing of that mark ux3on the i^roperty. These done, and the 
use is complete. 

This adoption of the mark and impressing it on the goods is the 
complete and perfect use of a trade-mark. The manufacture of the 
goods before or the shipment and sale of the goods after are in no 
proper sense comprehended in the subject. See Brown on Trade-marks, 
section 52, and section 109. 

The mark does not exist — except it he as a conception of the mind — 
but in law or fact it does not exist until it is impressed ui^on goods, 
as your signature only exists when written. In fact, the marking 
the goods of a manufacturer with his commercial signature or stamp 
of genuineness is, if a part of either, a part of the finishing act of 
the manufacture of the article, rather than belonging to the trans- 
portation, sale, or commerce of such goods. The goods are prepared 
and marked in the manufactory before they are ready for transfer 
to the sales or shipping room. Of course every separate act of the 
manufacture, from the purchase of the raw material to the impress 
of the signet of trade, the seal of ownership, is i)rompted by and ac- 
companied with an intent to sell in any and all the markets it is i)os- 
sible to enter. And the goods thus completed are intended to be the 
subjects of intrastate, interstate, and foreign commerce. The entire 
thing enjoyed is the preference in market for certain goods. In the 
words of one court : 

It is a right whicli can be said to exist only and. can be tested only by its viola- 
tion. It is the right which any person designating his wares or commodities by a 
particular trade-mark, as it is called, has to prevent others from selling wares 

2 MCC 



18 

■wliicb are not bis marked with, that trade-mark in order to mislead the public, and 
so, incidentally, to injure the person who is owner of the trade-mark. 

The property whicli is to be the subject of coustitutional and con- 
gressional protection is in the combination of the article mannfact- 
ured and the distinguishing mark, its consummation as the rightful 
possession of its owner, and its violation consists in stamping the 
mark on the goods. 

As patents and copyrights are ah'eady subjects of congressional 
clauses and of exclusive legislation by Congress, a comparison witk 
them will give a clear idea of the nature of the property in trade-marks. 

Primarily, trade-marks differ from patents and copyrights. Their 
origin differs. A mark for use in trade is selected anywhere ; the 
word, the idea, the sign, may be as old as Adam. It may be a mule's 
ear, a lion, an elephant, or a star. It originates only by adoption and 
use. Patents spring from original invention; the owner is father to 
the idea. 

Copyrights also belong to the claimant by reason of originality of 
production. It is the creature of his intellect, his thoughts, his genius, 
and therefore his own. 

In this they differ. Patents and copyrights become the owners' 
property in a different way and for different reasons from trade-marks. 
But even in this difference there is a latent analogy. Priority of use, 
the very twin of originality, is the title-bond to a trade-mark. One 
is the priority of thought, of invention, of discovery ; the other the 
priority of combination. And in that combination there is original- 
ity, thought, invention, and discovery. Many patents are but the re- 
sult of priority of combination of "plain, simple, old, and well-known'" 
things. Many grand and beautiful productions of the most brilliant 
stars in the literary world are but masterly conceptions of the com- 
bined effect of familiar fancies, tl!e precipitate of old thoughts. In 
this sense the adopter and user of a trade-mark is both the author 
and the inventor of the combination of the marked goods. And he 
has no exclusive property in it except in that original application in 
■which it is Impressed upon the article. 

But I am not differing from the opinion of the Supreme Court. I 
only intend to show you that while this subject of trade-marks was 
not contemplated by our fathers in the writing of the clauses of the 
Constitution on the subjects of patents and copyrights, (as it was not 
in the clause on the subject of commerce,) yet the subject, as it has 
grown into importance since their day, is analogous to them both, even 
in that in which it differs most, its very origin. But admitting this dif- 
ference between them here in the literal want of a relation to invention 
or discovery, or in the want of originality or the fruit of intellectual 
labor, I venture to assert that this is the only point of difference. 
This absence of invention and originality excludes it from the con- 
templation of the clauses of the Constitution in relation to these sub- 
jects in the opinion of the Supreme Court. Pass from the birth of the 
proprietary right and examine the nature of the property. What do 
you find ? The species of propertj^ is the same. The character, the 
nature of some rights is best disclosed by their violation, and this is 
true of these three proprietary rights, patents, copyrights, and trade- 
marks. Their violation is an infringement. In all these it is identical. 
American decisions have from the first, and English decisions have at 
last, placed the protection of trade-marks along with patents and 
copyrights upon the ground of property. In deciding upon just the 
nature of this property and its distinctiveness from commerce let me 
call your attention to all property of this kind. I may omit some. 



19 

but I believe they are included ii> these patents, copyrights, trade 
marks, the good- will of trade, and the property in the name of a 
magazine or other serial, literary publication. 

In point of prox)erty all these stand upon the same ground. How- 
ever that property may be acquired, it is itself the same in all. They 
are identical, too, in the remedies which the law extends to them. Th& 
nature of the injury in each in case of piracy or infringement is the 
same. That injury is felt in cheapening the price of the goods by an, 
inferior competitor and destroying the reputation of goods by the dis- 
covery of the inferiority, or, if not inferior, by fraudulently securing 
the advantages of the character of another in the market. The com- 
mon-law remedies are the same. The injured party has his action for 
damages for fraud or the infringement, and his equitable right to 
restrain by injunction, and ought to have the better remedies of the 
statutes against counterfeiting and pirating. 

To sum up, then, the discussion of the nature of the property in 
trade-marks, I say a trade-mark is a symbol of genuineness impressed 
upon certain salable goods by the prior appropriator of that mark ^ 
that he has a species of property iu the exclusive application of the 
symbol to the specified articles ; that his remedies are damages for 
infringement and injunction, and other more efficient statutory pro- 
tection ; that in the species of property, the injury, and the remedies^ 
it is identical with patents and copyrights. 

IS THE POWER TO KEGULATE TRADE-MARKS CONTAINED IX THE POWER TO REGULATE 
COMMERCE ? 

But the point of serious divergence of opinion, perhaps, is the next, 
that the subject can be practically divided into that regulation of 
trade-marks used in interstate commerce by itself, and that part 
used in State commerce by itself; and that Congress^ under the 
power to regulate commerce among the States, already has all that 
is needed for her share, leaving to the States the rest. A great many 
still hold to this opinion. 

I suppose the germ of that opinion and the suggestion of that posi- 
tion which takes form in the bill (H. R. No. 2573) by Mr. Armfield,. 
lies in the remarks of the Supreme Court in the late opinion declar- 
ing all present laws unconstitutional ; and I want first to carefully 
examine that opinion upon that point. Of course we all know the 
danger of seizing upon the running words of a writer of an opinion 
who means no more than to decide the case iu point, and dreams not 
of suggesting legislation, or any other improx)er ohiter dicta. And we 
know, too, how utterly futile, how useless, and how injurious is the 
effort to cling to straws like a drowning man when a decision has 
swept away, as a flood, all the structure of law by taking from under 
it the foundation. No judge would express his opinion ^upon this 
subject now. Hcwould. not prejudge a case otfthe bench which, he 
was so careful to leave undecided on the bench. 

You will find on page 5 of the report of the Committee on Mann- 
factures, in the opinion of the court, the following language : 

The question, therefore, whether the trade-mark bears such a relation to com- 
merce in general terms as to bring it within congressional control, when used or 
applied to the classes of commerce which fall within that control, is one which, in 
the nresent case, vie vrovosc to leave vndficided. We adopt this course because 
when this court is called on in the course of the administration of the law to con- 
sider whether an act of Congress or any other department of the Government is 
within the constitutional authority of that department, a due respect for a co-ordi- 
nate branch of the Gorernment requires that we shall decide that it has transcended 
its powers only when that is so plain that we cannot avoid the duty. 

In such cases it is manifestly the dictate of wisdom and judicial propriety tode- 



20 

cide no more than is necessary to the case in hand. That such has been the uni- 
form coTii'se of this court in regard to statutes passed by Congress will readily 
appear to any one who will consider the vast amount of argument i)reseuted to us 
assailing such statutes as unconstitutional, and will count, as he may do on his 
fingers, the instances in which this court has declared an act of Congress void for 
want of constitutional power. 

Here I suppose are the paragraphs in which, is suggested the hope 
that such constitutional legislation is possible. 

The question was : Does the trade-mark bear such a relation to 
commerce as to be controlled by Congress as an attribute of it ? 
They say, " We propose to leave it undecided." Bat why ? Because 
'* a due respect * * * requires that we shall decide." Decide 
what ? Decide " that it has transcended its powers." Then that is 
the disagreeable duty they i)ropose to leave undone now, and to do 
" only when * * * -vv^e cannot avoid the duty." It is as much as 
to say CongrevSS has not yet in that way or under that claim or pre- 
tense transcended its powers. It has not been so foolish or so grasp- 
ing or so ill-informed as to even- believe it was acting under that 
clause of the Constitution. 

When it is plain that such is the case, when Congress undertakes 
to enact a law which can only be valid in that clause, and upon the 
claim that a trade-mark bears such a relation to commerce in general 
terms as to be a subject of its control, then, and not till then, in a 
X)roper case we will add one more to the few instances in which the 
Supreme Court have declared its acts void for want of constitutional 
power. Then the court proceeds to show that Congress did not claim 
such power under the commerce clause. It could not regulate com- 
merce except " among the States," " with foreign nations," and " with 
the Indians." And as the largest part of commerce is perhaps within 
the State, the power would not be adequate, not sufficient, not com- 
prehensive enough. It was evideut the regulations of trade should 
and were intended to be " applicable to all trade, to commerce at all 
points." " Its broad purpose was to establish a universal system of 
trade-mark registration for the benefit of all who had already used a 
trade-mark, or who wished to adopt one in the future, with regard to 
the character of the trade to which it was to be applied or the locality 
of the owner." 

I should rather believe from this language that the reserved judg- 
ment of the court, so far as formed, though unexpressed, was that 
so far as it affected protection of trade-marks in a State or its use in 
interstate traffic, the act was unconstitutioaal as a regulation of com- 
merce. I make these remarks upon that decision with much diffi- 
dence, not willing to put words in the mouths of the court or twist 
these from their intended meaning. 

Now, let us sum up the argument found in the decision of the Su- 
preme Court against the constitutionality of this legislation under 
the commerce clause. They assert that it is^not every species of 
property which is the subject of commerce or which is used or even 
essential in commerce which is brought by this clause of the Consti- 
tution within control of Congress. They say a due respect requires 
that they decide that Congress has transcended its powers only when 
they cannot avoid it ; and for that reason they leaA'-e it undecided. 
They show that this power of regulation conferred on Congress is 
limited while trade-marks require unlimited regulation, and that the 
largest amount of traffic where it affects is beyond the limits of this 
Xiower. They say it is evident Congress did not believe it was acting 
under this clause. They show that the broad purpose of congressional 
legislation was manifestly to establish a universal system for the 
l)enefit of all without regard to trade or locality. 



21 

They regard a partial law as so objectionable as not likely to pass 
Congress. They say it would complicate rights and cause a conflict of 
law between State and nation. They close by saying the inquiry 
whether these statutes can be upheld in whole or in part as valid 
and constitutional must be answered in the negative. That it is not 
upheld as a universal STSieni under the patent clause, as a whole — 
not under the commerce clause so far as affects interstate and foreign 
commerce, in part. That is a bold mind that can face these state- 
ments of the decision and say they meant to suggest that such a law 
could be valid. 

But I am the more confident in this, because this view is sustained 
by the best reasons ; and in my judgment, upon the merits of the' case, 
should it ever come before that Court, requiring their decision, they 
would decide the subject of trade-marks to bear no such relation to 
commerce as to bring it within congressional control. 

It is not a subject of commerce : it is not a vehicle or instrument of 
commerce. It does not come within any of the decisions extending 
the meaning of the term commerce in the Constitution. It will not 
do to say, because the goods to which a trade-mark is applied are 
intended to be transported from one State to another, or sold by a 
citizen of one State to a citizen of another, that the mark becomes so 
related to commerce as to be the subject of congressional control. 
The argument proves too much, and would draw within the control of 
Congress all species of property and all the minutise of its manufacture. 

If you take the subject out of the field of specialties, such as pat- 
ents and copyrights, and i^lace it within that of commerce, then you 
leave it there to be divided into parts and give it an even worse 
status than if left entirely to the States. It becomes then your duty 
to carve out of it what is commerce within a State, what is commerce 
among the States, what is foreign commerce, and what is commerce 
with the Indians. Where will you draw your lines without confusion ? 
How will you frame your statutes with precision ? Who is to decide 
what ciaimant has the priority ? Who is to reconcile conflicting de- 
cisions? How are you going to bring about uniformity in the sys- 
tem ? When Massachusetts decides with A and South Carolina with 
B and Texas with C and the United States with E, and each within 
the limits of that part of the control of the subject committed by 
you to that particular government exercises his right of ownership 
to the same mark, who is to bring order out of that confusion ' 

You draw around your legislation the lines of constitutional limits 
by repeating the words "used in commerce with foreign nations, or 
among the several States, or with the Indian tribes," as Richelieu 
threw around his proiege with the gesture of his hand the muni- 
ments of Eome. Then, christened thus in constitutional phrase, you 
do the identical things which the Supreme Court have decided you 
can not do. Are the forms of the Constitution put on and off so 
lightly and so easily ? Does the Constitution change like the colors 
of a chameleon ? On a green branch is it green ; on a black, black? 

This, to my mind, is the simplest folly. 

Suppose you say, "Used in commerce among the several States, or 
with foreign nations, or with the Indian tribes." Trade-marks used 
in commerce among the several States ! How used ? What do you 
mean by " used in commerce among States ? " Trade-marks are just 
marks. In the simplest meaning of that word, can you use a mark in 
commerce ? You may mark something that is going to be shipped ; or 
you may ship something that is going to be marked ; or you may mark 
something, and it may some time be shipped. Again, are you going 



22 . 

"to give the proprietary right of a citizen of a particular State to a 
trade-mark used ^Yithin his own State by your act to another to be 
^•'used in commerce among the States or with foreign nations?" 
How are you to tell, in the exercise of your divided jurisdiction, how 
much condict you create with the local rights of others? While I 
enjoy in Iowa the protection of my trade-mark in the local markets of 
my State, are you to permit others shipping in from other States or 
nations to pour in upon me, nnder the w[/i8 of your protection and ex- 
clusive grant, goods impressed with my trade-'mark? Then what do 
you uiean, and where do you draw the line ? 

Mr. Speaker, do we not see that the subject is indivisible, insepara- 
ble J that, as Congress wisely attempted to do, had it had the power, 
what wx want to get the power to do and do is to establish a universal 
system of trade-mark registration for the benefit of all, without re- 
gard to the character of the trade to which it is to be applied or the 
locality of the owner ; to have a uniform system, one place of grant- 
ing certificates, one place of record, one statute of protection, one 
penalty of violations? 

We have seen it is like patents and copyrights in nearly every re- 
spect. Ought it not. like them, to be mads the specific subject of 
congressional control? Even were it possible to force the terms of 
the Constitution to meet the case, it would be vastly more harmful 
than to make a specific grant of the power, as the resolution pro- 
vides. There is da,nger in extending the powers of Congress by in- 
ference and construction of its present clauses beyond their natural 
and original meaning. And it is much the safer and better plan to 
enlarge these powers by additional and express grants as in the prog- 
ress of time they become necessary. 

See the case of Gibbons vs. Ogden, (9 Wheatou R., 198.) 

In Veazie vs. Moor (14 Howard, 568) Justice Daniels says: 

Talfina; the term commerce in its broadest acceptation, supposing it to embrace 
21 ot merely traffic, but the means and vehicles by whicli it is prosecuted, can it 
properly be made to include objects and purposes such as those contemplated by 
the law under review ? (A law granting the exclusive right to navigate the upper 
waters of a river lying wholly within the limits of the State granting it, impassably 
-separated from tidal waters' and not forming a part of any continuous track of 
commerce between States.) Commerce with foreign nations must signify commerce 
which in some sense is necessarily connected with those nations, transactions which 
• either im mediately or at some stage of their progi-ess must be extra-territorial. The 
phrase can never be applied to transactions wholly internal between citizens of 
the same community or to a policy and laws whose ends and purposes and opera- 
tions are restricted to the territory and soil and jurisdiction of such community. 
~NoT can it be properly concluded that because the products of domestic enterprise in 
agriculture or manufactures, or in the arts, may ultimately become the subjects of 
foreign commerce, that the control of the means or the encouragements by which en- 
terprise is fostered and protected is legitimately within the import of the phrase for- 
eign commerce or fairly implied in any investiture of the power to regulate such 
commerce. A pretension as far-reaching as this would extend to contracts between, 
-citizen and citizen of the same State, would control the pursuits of the planter, the 
grazier, the manufacturer, the mechanic, the immense operations of the collieries 
and mines and furnaces of the country ; for there is not one of these avocations 
the results of which may not become the subjects of foreign commerce, and be 
borne either by turnpikes, canals, or railroads from point to point within the sev- 
•eral States toward an ultimate destination, like the one above mentioned. 

Such a pretension would effectually prevent or pai-alyze every effort at internal 
improvement by the several States ; for it cannot be supposed that the States 
would exhaust their capital and their credit in the construction of turnpikes, 
canals, and railroads, tlie remuneration derivable from which and all control over 
which might be immediately wrested fiom them, because such public works would 
be facilities for commerce which, while availing itself of those facilities, was un- 
-questionably internal, although intermediately or ultimately it might become for- 
.eign. 

The rule here given with respect to the regulation of foreign commerce equally 



23 

' excludes from the regulation of commerce between the States and the Indian tribes 
the control of turnpikes, canals, or railroads, or the clearing and deepening of 
Tvater-courses exclusively within the States, or the management of the transporta- 
tion upon and by means of such improvements. 

To whip the devil around the stump and avoid the effect of a con- 
stitutional inhibition by the jugglery of a few empty words, were it 
possible, would be full of danger. 

Why quibble around the Constitution and make a lame, indefinite, 
useless law, instead of manfully shouldering the whole question, get 
the necessary j)ower in the good old way, and then legislate intelli- 
gently and safely f All that could be secured by any other course 
would be additional doubt, litigation, confiict, until the law would 
become a dead letter. 

Now, in reference to the amendment here, I ask leave to substitute 
for the amendment in its language the following, which I will ask 
the Clerk to read : 

The Clerk read as follows : 

Section 1. Congress shall have power to provide for the registration and protec- 
tion of trade-marks. 

Mr. McCOID. That brings the constitutional amendment simply 
down to what we want, and there can be no objection, as I under- 
stand the gentleman from Georgia to say there might be, to the word- 
ing of the amendment, and I ask this to be made the section instead 
of the one in the resolution, so that there may be no objection to the 
wording of the resolution. 

Now, Mr. Speaker, in reference to the amendment. Gentlemen here 
have expressed themselves— and I believe it is the general feeling 
upon the subject — that they are opposed and unwilling to amend the 
Constitution except upon a great necessity. I agree fully with the 
expressions of the gentleman from Georgia as to that venerable and 
venerated instrument, and I am in full accord with him on that sub- 
ject that it is dear to us by the associations of history in connection 
with the times in which it was made, and that it is wise in its pro- 
visions. 

But, Mr. Speaker, it is only the articles of incorporation of this 
Government and the doctrine that it is unchangeable cannot be main- 
tained for a moment. The American people are not a stolid unpro- 
.gressive people that require no changes in their organic law. We are 
not Asiatics and I can see no argument in the assertion that the Con- 
stitution was designed by its founders not to be changed to fit the 
conditions of a growingj prosperous nation. The lion's skin may be- 
come too short. We are stretching our limbs ; we are expanding our 
lungs ; we are extending our territory, increasing the number of our 
States, extending new lines of railway, stretching telegraph wires 
across plains and mountains ; we are swarming above and talking be- 
neath the seas : we are overcoming new difficulties and contriving 
new forces and instruments of enterprise, and the giant form which 
is thus growing to manhood cannot lie within the narrow confines of 
the cradle of its infancy. And those honored men whose names we 
revere and whose work has come down to us with the sanctity that 
attaches to it intended that there should be changes in the organic 
law and provided that changes should be made. In reference to this 
necessity, I beg leave to read one or two extracts from the Civil 
Policy of America, by Draper. 

He writes : 

The first and most important condition for the prosperity of a great nation is sta- 
'bility in its institutions. But staoility must be carefully distinguished from immn- 



24 

bility. "We must bear in mind that the affairs of men are ever chan oing ; successive 
generations live under essentially different conditions ; public necessities are there- 
fore continually varying, and disorder arises as soon as institutions prescribe one 
course and necessity demands another. To insure stability the political system 
must therefore admit of chan^^e — that change being in accordance with a law of 
variation which depends on a fixed principle. Tin changeability should belong to 
the law, not to the institutions issuing from it. In that manner alone can order and 
progress co-exist, and the demand made by modern statesmanship with so much 
solicitude be satisfied. It truly affirms that there can be no real order without prog - 
ress, and no real progress without order. 

Institutions well adapted for five millions of people will certainly be very un- 
suitable for fifty. Institutions intended for a narrow coast line will certainly be 
inadequate if applied to one of the quarters of the globe. Edifices, though they 
may be built of iron, will fall to pieces if the architect has not made provision for 
expansion at one point and contraction at another. Where motion must in the 
necessities of the case occur, it is essential for safety that there should be a har- 
mony among the moving parts. Inequality of progressive movement implies strain , 
strain implies fracture. It is therefore the province of statesmanship to determine 
how change shall be provided for in political institutions, and what is the true nat- 
ure of the law by which they shall be modified. Above all, it is its province to 
discover the immutable principles on which that law must rest. It is better for 
communities to advance through legal forms than by revolutionary impulses, or by 
attempting to secure stability through incessantly failing experiments. The only 
safe guide for them to follow is furnished by a careful investigation of the circum- 
stances under which their life has been and is to be spent. 

Now, I have only to say further that changes in our Constitution 
should he made onlv for imperative reasons. It is only a question of 
necessity, so as to place ourselves as a nation and our people upon an 
equal footing with those of the commercial nations of the world. 
There is no power in the States to make treaties with each other. 
That power has been left to the General Government for them. This 
amendment provides no different rule with reference to this than is 
applicable to our treaties with England, France, Belgium, and the 
other nations of the world, stipulating that uniform laws shall govern 
all alike upon the subject of trade-marks. We have not hesitated to 
seek that uniformity of mutual protection by treaties with other gov- 
ernments, and why should we decline to unite our thirty-eight States 
in the same uniformity through constitutional amendment and na- 
tional legislation. We have not feared to change international law, 
why should we refuse to amend the interstate organic law. The Con- 
stitution, Mr. Speaker, is not a mummy of unchangeableness laid 
away in the pyramid of our reverence for our fathers, but the plastic 
charter for aliving, growing, ever-changing people. Here is a great 
interest affecting vitally our trade and commerce, and we desire to 
legislate upon it. We thought we had the constitutional power. We 
enacted what we intended to be, in the language of the Supreme 
Court, a uniform system of trade-mark legislation. It worked well 
and satisfactorily to the whole people. 

That legislation was declared void for want of constitutional power. 
it is admitted by the opponents of this amendment that it would be 
a great convenience to the people. The plain, direct, practical way 
out of the difficulty is first to secure the power, all that we supposed 
we had by the constitutional amendment, and then legislate as we 
did before. 

The gentleman from Georgia seems to think the subject a trivial 
one, and not of sufficient importance to justify this action ; and in his 
attempt to belittle it he talks of the protection of " Winslow's Sooth- 
ing Syrup " and such things as that. 1 wish to remind the gentleman, 
in order to relieve his mind from that attempt to belittle the subject, 
that he justifies and eulogizes our fathers for placing the copyright 
clause in our Constitution ; but he might, with a like spirit of unfair- 
ness, as well have ridiculed them by referring to these copyrighted 



25 

works I have before me, [holding them up] — the " Dashiugton Broth- 
ers' Negro Song-Book," the " Pitcher-of-Beer Songster," the '' Sullivan 
and Harrington Sweet Jerusha Jane Songster," *•' Little Grant's Tired 
of Single Life Songster," '' Mother Goose," " Weston Brothers' Laugh- 
ing Chorus," and "Jenny Jones's Songster." 
A ME3IBER. Do not forget '' Jack, the Giant-Killer." 
Mr. McCOID. I will include " Jack, the Giant Killer " as the gen- 
tleman suggests, and I might mention many others. The gentleman 
from Georgia attempts to belittle the subject ; and yet he stands in 
the presence of the fact that the great sovereignties of Germany and 
America, the great sovereignties of France and America, the great 
sovereignties of Russia and America, the great sovereignties of Bel- 
gium and America, and all the powers with whom we have treaties 
have met in solemn convention, and the high contracting powers have 
considered this subject and made it an important clause in treaties be- 
tween great nations. Yet the gentleman could not point to any- 
thing of the kind with reference to the copyright laws or the patent 
laws. It is a subject of far more importance to-day to the prosperity 
of the American people, their trade or their commerce, than I fear the 
gentleman from Georgia has any idea of. 

If that trade-mark law had existed under the penal section in the 
acts of Congress protecting trade-marks, we would soon have had 
thousands and thousands more of them. The trade-marks registered 
in the Patent Office to-day do not represent one-tenth of the trade- 
marks in this country. You will find them in every grocery, in every 
store, in every manufactory, that are not recorded at all, because the 
people had not arrived at a knowledge of the efficiency of the protec- 
tion of the national laws until 1876, when the penal clause was put 
in. Men will not protect themselves under the common law by suing 
for damages, for the result is too small for the expense. But the penal 
laws to punish the pirating and counterfeiting of trade-marks would 
lead every man who had a trade-mark to pay the fees of the Patent 
Office and receive his registration. 

STATE EIGHTS AND STATE LEGISLATION. 

I must refer briefly to another question which the gentleman from 
Georgia discussed, as to whether States may properly protect these 
rights. We have, the gentleman says, in a great many of the States 
laws on this subject ; that the common law and State legislation 
afford all the protection American owners of trade-marks need. The 
gentleman from Georgia says : 

It is claimed that the States cannot adequately protect trade-marks. Why not ? 
Their judges are as honest and as learned in the law as those tipon the United 
States benches. The jurors, if different in the two courts, are not better in those 
of the Federal courts ; in some parts of the country they are much below the State 
standard of intelligence and virtue. States officers are more numerous, and equally 
faithful; their courts more numerous and more accessible; justice can be had 
cheaper and quicker in the State courts. 

Again he says : 

This Government has naught to do with theprotection of purchasers of manu- 
factured goods. It ought not to have ; that work properly belongs to the several 
States. 

And then he closes his remarks with a brilliant rhetorical peroration 
on the subject of State rights and State sovereignty, in which he 
says, '"'The United States is strong enough; let us magnify the 
States." 

It is really pitiable to see how every subject of legislative action, 
great or small, is poisoned, discolored, and put beyond the pale of 



26 

just coBsideratioa in the minds of some men by the ghost of State 
rights. They seem to walk in a graveyard of the past, and every 
stone is a specter to harrow up their souls on this subject. They can- 
not talk a half an hour upon any subject — the sword of Washington, 
the staff of Franklin, the dumb desk of Jefferson, or even the simple 
subject of trade-marks — without entering into learned disquisitions 
on the subject of State sovereignty. Excavators of the earth, they 
say, sometimes find stones from which when opened a toad leaps out. 
So it is with these gentlemen. They bring into this House some care- 
fully prepared argument on the most innocent subject, and as you 
settle yourself in your seat to do justice in attention to their prepared 
eloquence you find yourself suddenly surprised and mortified to see 
leap forth as they open it tlie toad of State rights. 

There is no State rights in this subject ; none whatever. You are 
not asked to relinquish one power the States now have or to diminish 
in the least your State's right to control her domestic affairs. The 
common law will yet remain, the statutes of the States will yet re- 
main, and their efficiency for domestic protection will be just as great. 
Why, the gentleman gives the States where statutes upon this subject 
exist, and says : 

It appears (by absence of reported cases) that no one bas ever sougbt to protect 
himself at law as to trade-ma.rks in either of the States jast named except G-eorgia. 

And in Georgia there is no State legislation proper, for it but re-en- 
acts the common-law remedies. The United States passed a uniform 
system of legislation upon this subject in 1870, and added still more 
efficient amendments in 1876. Whoever heard of any complaint from 
States? Was the glory of Georgia dimmed or her sovereignty hum- 
bled? Did it not give the most perfect and universal satisfaction 
except to pirates and infringers ? Pshaw, now be reasonable! You 
say State legislation is enough for American owners of trade-marks. 
Well, then, why not good enough, ample enough, equally for aliens? 
Your logic cuts your own throat. Why are you here urging a bill to 
enact a code of trade-mark laws for foreigners— ay, the very laws 
which Congress did pass for all, and which it is desired to pass again 
for all as soon as this constitutional amendment is ratified, and which 
were declared void for want of constitutional power to pass them ? 
Why do you urge these laws under another clause of the Constitution 
for foreigners only, and yet in the same breath say " there is no ne- 
cessity for such legislation " for our own citizens? Will not State 
laws protect foreign citizens also ? Are not your judges just as hon- 
est, your State jurors just as good, State officers just as numerous and 
faithful. State courts just as accessible, and justice there as much 
quicker and cheaper for citizens of other countries as of other States ? 
By advocating this bill, this anomaly of legislation, you advocate this 
amendment, by which alone the same additional protection may be 
given to our people. Your arguments for it are magnified for our 
peoi^le with all the power of the audiphone. 

Those laws are conflicting. Take, for instance, California. Cali- 
fornia gives a trade-mark to the man who first registers it with the 
secretary of state. In Oregon I think the right of a trade-mark is 
given to a man who first applies and registers his trade-mark with 
the secretary of state. In Missouri the trade-mark is obtained by a 
description acknowledged and recorded in the recorder's office of the 
county. Now, imagine those three laws in operation in the United 
States and one man claiming under the registry of California, another 
under that of Oregon, another under the law of Missouri, in virtue of 



-a trade-mark recorded in some remote county. There would be no 
end to the litigation under such a conflict of laws. 

The gentleman from Georgia states in his speech that in all these 
States, except in one case in Georgia, there has not been an action. 
Kow, how do you account for the fact that in connection with a sub- 
ject of ao much importance as to be made the subject of all the trea- 
ties of the world there is not a single case reported in State courts 
except this case in Georgia ? Why, it is because the laws are so 
futile and weak and unworthy that the people do not apply to them 
for a remedy. It would cost a man more to hire his attorney than all / 
lie would get in the form of x)etty damages for the infringement of his 
trade-mark. The gentleman is mistaken as to many of the States he 
has cited as having trade-mark laws. In many cases they are only 
penal clauses as to general brands — merely domestic arrangements, 
nothing else. But we find State legislation is utterly insufficient, and 
it will result in coniiict. The Supreme Court say in their opinion the 
Legislature would possibly not pass a law protecting foreign trade- 
marks and leaving the rest to State legislation, which would result 
in conflict of legislation. 

But gentlemen who argue for this bill for foreigners under treaties 
must find themselves admitting that State legislation is not sufdcient, 
else why do aliens want more ? There must be something urgent, 
important, necessary, which under treaties foreign citizens demand 
and which common law and State legislation will not give. Your 
constitutional provision upon which you found your power says it 
must be "necessary and proper" legislation to execute a treaty. 

Well, then, does not the same great occasion exist for our citizens 
of the United States to urge such legislation for themselves? I say 
State legislation is not sufficient. The Committee on Manufactures, 
to which the subject properly belongs, says the amendment and legis- 
lation under it is necessary. But the gentleman asks why ? Because 
State laws are limited to State lines. Because some States will be 
more interested in protecting trade-marks than others, and those who 
feel no interest will not go to the expense of providing and enforcing 
adequate laws; just as under the old confederation where the ex- 
penses of wars were to be contributed by the States, those States at 
a distance from the seat of war and secure from its dangers refused 
to contribute to its expense. Because conflicts will arise in legisla- 
tion as well as in ownership of marks in different States. Because 
there will be no common court or office to determine the rights of 
claimants, keep a record of marks, and grant certificates. Certificates 
of trade-mark ownership are assignable like patents, and under a 
system of State certificates there would be no security against dupli- 
cates from difierent States. 

State legislation has never been of sufficient advantage to be sought. 
Because commercial relations with other countries and among the 
States have become so iutimate and great that the world looks to the 
General Government for a recognition of a subject so importantly 
connected with it. Because the subject is not local or domestic in its 
character, but is similar in every respect except its origin to patents 
and copyrights. There are no trade-mark laws except in the States 
of California, Connecticut, Kansas, Maine, Massachusetts, Michigan, 
Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, and Ore- 
gon. Illinois has laws forbidding refilling vessels containing certain 
liquors. Iowa has a penal section for counterfeiting marks, stamps, 
or brands, Kentucky punishes the use of a false brand. Georgia 
gives courts of equity common-law powers by statute. Pennsylvania 



28 

has some penal statutes. Indiana lias a penal section against refilling 
bottles of certain liquors in certain cases. That is all. Substantially 
there is no State legislation comprehending the subject of trader- 
marks. 

Now, the gentleman from Georgia thinks there is no confiict, and 
State legislation could not result in conflict and confusion. The worst 
conflict to be feared is in the claim of ownership to a trade-mark. 
In the few and meager laws now existing in States let us see if there 
is any such conflict. Take California. Any mechanic, manufacturer, 
druggist, merchant, or tradesman in that State may secure the ex- 
clusive use of the mark usually fixed by him on his goods by filing 
with the secretary of state a copy or description of the same and 
claim of ownership), with his affidavit that he is the exclusive owner 
or agent of the owner, and paying a fee of .$3. 

In Missouri, the mechanic, manufacturer, or other person executes 
a description of his trade-mark, acknowledges it, and records it in 
the county in the office of the recorder of deeds, which is notice to 
the world. 

In Nevada, any one registering his trade-mark or name with the 
secretary of state is protected in that mark. 

In Oregon the trade-mark is registered in the office of the secretary 
of state by the person who first presents the same for record, and 
gives that person the exclusive right to it. Different States protect 
trade-marks on diflferent preferred things. One State mineral water^, 
one beer, one flour, one watches, one wines, &c. It seems to me that 
here is chaos of confusion and conflict of laws sufficient even for the 
gentleman from Georgia. And now the addition of this partial leg- 
islation under this bill will but come in to render in its workingia 
" Confusion worse confounded" until, as even its advocates say, we 
will be driven finally to adopt the proposed amendment. 

But why wander in this wilderness of unsatisfactory laws until 
taught by sad experience our duty. Let us go right over to the in- 
evitable now. I know the pressure from foreign influences, from the 
State Department, and from attorneys representing the wealth in- 
volved in foreign trade-marks, which is brought to bear upon Con- 
gress to pass some measure of this character as a present necessity, 
leaving its constitutionality to the courts and its evils to be devel- 
oped ; and I feel that the bill will pass. But if it does I hope it may 
not be made an instrument of defeating the submission of the piv^ 
posed amendment. It proposes no change in the Constitution a& 
made by its framers, only an addition to it, and one in the nature of 
carrying out the will of its original framers. It is but doing what 
they did for like subjects. They gave to Congress power to legislatcj 
on certain subjects then known to them to be of public concern,. 
Since their day one more of the same sj)ecie8 has been added in the 
growth of the world's intercourse. We execute their unfinished will 
by adding it. 

Let the matter be submitted to the States, and let the people vote 
upon it. That at least is their right. And it would be a pleasant 
and satisfactory evidence of common sentiments of attachment to 
the Union to see thirty or more of the States unite speedily in mak- 
ing a grant of power to the General Government to regulate a subject 
of such wide interest and concern. I hope sincerely to see such & 
proof of patriotism and fraternal unity. 



O 



